Hostile Architecture meets COVID-19: Why Anti-Homelessness Laws Must be Re-evaluated

In 2019, the U.S. Supreme Court refused to hear an appeal to the Ninth Circuit Court of Appeals’ decision in Martin v. Boise (2018), which asserted that “an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them.” [1] The Supreme Court’s refusal renders the Martin decision final, setting a national precedent for the civil rights of those experiencing homelessness. However, the increased presence of hostile, or anti-homelessness, architecture in urban areas still inhibits the homeless individuals’ access to public spaces, essentially placing criminal sanctions on one’s status of homelessness. The COVID-19 pandemic increases the vulnerability of the homeless population by increasing financial instability and limiting shelter capacity. The Martin v. Boise decision does not explicitly protect those experiencing homelessness from anti-homeless architecture; however, its basis on the Eighth Amendment’s protection from cruel and unusual punishment suggests that hostile architecture similarly violates the Eighth Amendment rights of those experiencing homelessness. Hostile architecture must be explicitly challenged in courts to protect the rights of those experiencing homelessness during this particularly exigent time.

Hostile architecture is an intentional urban design strategy that guides or restricts behavior with the purpose of preventing crime and protecting property, targeting people who rely on public space to live. [2] Examples of hostile architecture include large metal bars in the middle of public benches, teethed railings, spiked window sills and ledges, curved benches, and utilities such as bike racks obstructing common camping locations. In 2018, for example, the City of Seattle installed bike racks under an old viaduct to disrupt a homeless encampment and inhibit sleeping, a primary function of all hostile architecture. [3]  

While hostile architecture intentionally limits the movement and living experience of those experiencing homelessness in outdoor spaces, the COVID-19 pandemic has made indoor spaces similarly inaccessible. COVID-19 has not only increased the number of people experiencing homelessness, but has also greatly limited the capacity of shelters. According to the Department of Housing and Urban Development’s count, between January 2019 and January 2020, the number of those unsheltered exceeded the number of those sheltered for the first time, and chronic homelessness increased by 15 percent. [4] Those who are unsheltered are extremely vulnerable to infection and prolonged side effects due to underlying health conditions and an inability to obtain testing for COVID-19. [5] Limited testing resources and access to health care have made homeless shelters COVID-19 hotspots, as people experiencing homelessness “don’t have the luxury of separating themselves from others.” [6] These hotspots are even more dangerous to unsheltered individuals, who experience higher mortality rates compared to those who are sheltered and experiencing homelessness. Moreover, due to public health guidelines such as social distancing and limited capacity, several shelters across the country have adopted stricter restrictions on services, volunteers, and/or admittance, with some closing completely. [7] As a result, those experiencing homelessness rely more heavily on public spaces to sit, rest, and sleep. The growth of hostile architecture relies on the assumption that people experiencing homelessness have the option to sleep indoors; however, the COVID-19 pandemic has made that choice impossible.

In Martin v. Boise, six individuals experiencing homelessness in Boise alleged that the city ordinances prohibiting the usage of “any of the streets, sidewalks, parks, or public places as a camping place at any time,” and “occupying, lodging, or sleeping in any building, structure, or public place, whether public or private . . . without the permission of the owner or person entitled to possession or in control thereof” violated their Eighth Amendment rights. [8] In 2018, the Ninth Circuit Court of Appeals decided that “an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them.” [9] Writing for the majority, Judge Marsha Berzon stated, “the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being… As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.” [10]

A year later, the Supreme Court refused to hear an appeal to the U.S. Court of Appeals for the Ninth Circuit’s decision on Martin v. Boise, rejecting the City of Boise's claims that the Ninth Circuit’s decision inhibited their ability to maintain the health and safety of their community. [11] This set a powerful national precedent regarding the Eighth Amendment’s protections of people experiencing homelessness. Nonetheless, there are still significant limitations in this precedent; because the Martin ruling only directly affects the states within the Ninth Circuit, anti-camping and anti-homeless ordinances still exist elsewhere across the United States. Moreover, instead of directly addressing hostile architecture, the ruling only concerns the criminalization of camping if there’s “nowhere else left to go,” a phrase that is not clearly defined and has been contested in subsequent cases. 

This limitation is readily apparent in Denver v. Burton (2020), a case in Colorado, a state not within the Ninth Circuit. A man experiencing homeless sued the Denver Police Department for violating his Eighth Amendment protection against cruel and usual punishment when a police officer cited him for camping on public property after he rejected an offer to stay at a homeless shelter. Though the district court acknowledged the Martin decision in its deliberation, it ultimately concluded that Denver’s anti-camping ordinance did not violate Burton’s Eighth Amendment rights because the plaintiff was technically offered the opportunity to sleep indoors. [12] The misperception concerning choice for the individual experiencing homelessness in this pre-pandemic case has consequences on the current pandemic world, as those experiencing homeless may elect to not stay in a shelter because of their high vulnerability to the disease. As a result, individuals choosing to avoid the acute danger of COVID-19 in shelters are left unprotected.

It is difficult for those experiencing homelessness, especially those who are unsheltered, to legally challenge hostile architecture. However, challenging anti-homelessness legislation in the courts incrementally gives such individuals more power to claim their rights, as evident in Martin v. Boise. [13] Though the Martin case specifically argues against criminalization, not hostile architecture, the Ninth Circuit Court of Appeals relied on the language of the Eighth Amendment to strike down the anti-camping ordinances of Boise. Using similar argumentation, hostile architecture itself can be challenged in courts to create legal precedent related to the design strategy. The manner in which hostile architecture specifically targets those experiencing homelessness could be interpreted as a cruel and unusual punishment, especially during the pandemic. As Judge Berzon wrote, “the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being,” a conclusion that can be extended from criminalization to hostile architecture. [14] Thus, Martin v. Boise has opened spaces for those experiencing homelessness to further advocate for their rights to public space and human functions such as sleep.

Hostile architecture deprives a human experiencing homelessness of sleep, an involuntary and necessary aspect of life, and can therefore be considered a punishment for simply trying to stay alive. Acknowledging this problem, the Department of Justice also issued a statement of interest in 2015 concerning Martin v. Boise, stating that “when adequate shelter space does not exist, there is no meaningful distinction between the status of being homeless and the conduct of sleeping in public. Sleeping is a life-sustaining activity — i.e., it must occur at some time in some place. If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.” [15] In other words, sleep prevention is akin to the criminalization of homelessness, implying that those impacted by hostile architecture are experiencing a violation of their Eighth Amendment rights. 

Despite the harm committed against those experiencing homelessness, especially during the COVID-19 pandemic, hostile architecture has yet to be directly challenged in the United States legal system. However, the Martin v. Boise Ninth Court decision and the Supreme Court’s refusal to hear an appeal provides a legal channel to support those experiencing homelessness to legally advocate for themselves and oppose the practice. Though not an explicit ordinance, the usage of hostile architecture in urban areas with high populations of people experiencing homelessness punishes those experiencing homelessness by inhibiting their ability to sleep, which is necessary for survival. The pandemic, severely endangering their health, shelter, and security, intensifies the impacts of hostile architecture, resulting in the further violation of Eighth Amendment protections. Thus, although Martin v. Boise cannot specifically protect the homeless against hostile architecture, the decision’s interpretation of the Eighth Amendment and the Department of Justice’s support finally creates an opportunity to challenge this discriminatory and inhumane practice.

Edited by Aidan Aguilar

Sources:

[1] Martin v. City of Boise - 920 F.3d 584 (9th Cir. 2019), LexisNexis, online at 

https://www.lexisnexis.com/community/casebrief/p/casebrief-martin-v-city-of-boise (visited October 23, 2021); Adam Liptak, Supreme Court Won't Revive Law barring Homeless People from Sleeping Outdoors, The New York Times (December 16, 2019), online at https://www.nytimes.com/2019/12/16/us/supreme-court-idaho-homeless-sleeping.html (visited October 23, 2021).

[2] Cara Chellew, “Defending Suburbia: Exploring the Use of Defensive Urban Design Outside 

of the City Centre,” 28 Canadian Journal of Urban Research 1 (2019). 

[3] Josh Cohen, New Anti-Homeless Architecture: Seattle Uses Bike Racks to Block Rough

Sleepers, The Guardian (January 24, 2018), online at

https://www.theguardian.com/cities/2018/jan/24/anti-homeless-architecture-seattle-bike-racks-bl

ock-rough-sleepers (visited October 24, 2021).

[4]  Pam Fessler, HUD: Growth of Homelessness during 2020 Was 'Devastating,' Even before the 

Pandemic, NPR (March 18, 2021), online at 

https://www.npr.org/2021/03/18/978244891/hud-growth-of-homelessness-during-2020-was-devastating-even-before-the-pandemic (visited October 24, 2021); State of Homelessness: 2021 Edition, National Alliance to End Homelessness (August 16, 2021), online at https://endhomelessness.org/homelessness-in-america/homelessness-statistics/state-of-homelessness-2021/ (visited October 24, 2021); The Effect of Covid-19 on Homelessness in the US: United Way, United Way of the National Capital Area (July 30, 2021), online at https://unitedwaynca.org/stories/effect-pandemic-homeless-us/ (visited October 24, 2021).

[5] Giselle Routhier and Shelly Nortz, Covid-19 and Homelessness in New York City, Coalition

For The Homeless (June 2020), online at

https://www.coalitionforthehomeless.org/wp-content/uploads/2020/06/COVID19HomelessnessR

eportJune2020.pdf (visited October 24, 2021).

[6] Ibid.; Amy Maxmen, Coronavirus Is Spreading under the Radar in US Homeless Shelters, Nature Publishing Group (May 7, 2020), online at https://www.nature.com/articles/d41586-020-01389-3 (visited October 25, 2021).

[7] Shelter Closings, Tamarack Media Cooperative (May 3, 2020), online at

https://nlihc.org/coronavirus-and-housing-homelessness/shelter-closings (visited October 25,

2021) 

[8] Ibid.

[9] "Martin v. Boise," introduction, 1.

[10] Liptak, “Supreme Court Won't,” introduction, 1.

[11] Theodore B. Olson, Bradley J. Hamburger, Joseph Tartakovsky, Theane D Evangelis, 

Samuel Eckman, and William F Cole, “On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit,” Supreme Court of the United States (August 22, 2019), online at https://www.supremecourt.gov/DocketPDF/19/19-247/113245/20190822142009316_Martin-Boise%20Petition%20TO%20FILE.pdf (visited October 25, 2021).

[12] Laurel Witt, Denver Ordinance Prohibiting Camping Withstands District Court Scrutiny,

Colorado Municipal League (2019), online at

https://www.cml.org/home/advocacy-legal/denver-ordinance-prohibiting-camping-withstands-sc

utiny (visited October 25, 2021).

[13] “Martin v. City of Boise,” 133 Harv. L. Rev. 699, 699-706 (2019). 

[14] Vanita Gupta, Mark Kappelhoff, Judy Prestion, Timothy Mygatt, Sharon Brett, Wendy

Olson, Chiraag Bains, and Eve Hill, Statement Of Interest Of The United States, The United States Department of Justice (August 6,

2015), online at https://www.justice.gov/opa/file/643766/download (visited October 25, 2021).

[15] Ibid.